Portability of social security benefits of
circular migrant workers in selected SADC
member states
P Masoebe
Orcid.org/0000-0000-0000-0000
Thesis submitted in
partial
fulfilment of the requirements for
the degree
Doctor of Laws
in
Perspectives on Law
at the
North-West University
Supervisor:
Prof MM Botha
Graduation: May 2020
DEDICATION
To my father, my mother, and my brother. May you never seize to pray in good times as you do in bad times.
ACKNOWLEDGEMENTS
Writing a doctoral thesis is a very lengthy and challenging process that requires a source of strength which in this regard has been God throughout this journey. The Lord my God, thank you for the gift of life. My family also played a major role in this part of my life: my mother, ‘Maphoka Leonia Masoebe, my love for you is immeasurable, thank you for your prayers, may you forever be my guide and the source of my strength. To my father, Tséle Masoebe your silence in hard times does not go unnoticed, thank you very much for your prayers and words of encouragement. To little brother, Mosiuoa Masoebe, your boldness and prayers are always appreciated. May you forever continue to grow.
To my supervisor Prof Monray Marsellus Botha, I would like to take this time to thank you for accepting to be my supervisor; you have been a blessing in my life. You agreed to supervise me at a time when concluding a doctoral thesis seemed an unachievable task. You gave me the freedom to work on what I wanted and therefore made me grow as a researcher. Thank you for your guidance and most of all your patience. I must admit that completing this thesis was one of the most difficult processes in my life. May the good Lord bless you and all your future endeavours.
To North-West University and the Faculty of Law in Potchefstroom, I am forever grateful for the opportunity.
ABSTRACT
The issue of portability of social security benefits is a daunting issue facing migrant workers in both Southern Africa and the world in general. In the Southern African Development Community region migration seems to be driven mainly by the need to attain economic freedom. The fact of the matter is that migrant workers from Lesotho and Swaziland who work and have worked in South Africa do play a major role in boosting these countries’ economies. Another issue that cannot be ignored is the fact that circular migration as a phenomenon is unlikely to come to an end any time soon in this part of the world. This means that social security benefits of migrant workers and its portability should be an issue that is dealt with cautiously and speedily, especially in terms of looking at the millions of unclaimed social security benefits reported each year by social security funds and schemes in South Africa. While examining the extent to which selected SADC member states, namely Lesotho, Swaziland and South Africa, have undertaken to combat this issue, international and regional instruments that have a bearing on social security rights are analysed and the realisation is that in as much as these do provide for social security rights and portability of benefits thereof, a lack of ratification and implementation play a vital role in achieving efficient portability of these rights. Although South Africa, as the largest migrant-receiving country in the SADC region, does provide for the right to social security in its Constitution, the fragmented nature of its social security framework, together with other factors such lack of information, exploitation by employers, distances travelled to lay claims and a non-existent social security adjudication system means that migrant workers are normally left with lack of redress when their contracts of employment reach an end. On the other hand, Swaziland and Lesotho, as migrant-sending countries, do not even have provisions in their constitutions that specifically deal with the right to social security. This means that citizens who work abroad do not have sufficient social security coverage in either country, as well as in South Africa as a host country. Consequently, multilateral and bilateral agreements on social security are pivotal in addressing this issue of unclaimed social security benefits as they go a long way in making sure that migrant workers are provided with
adequate social security protection and coverage as a whole. Migrant sending countries also need to undertake unilateral initiatives to guarantee that their citizens are adequately protected in this specific sphere of social security. Examples are further drawn from the best practices of different regions in the world, namely the Southeast Asian Nations Region, Caribbean Community and Common Market and the Southern Common Market.
The above-mentioned regions have established multilateral social security agreements that seek social security protection for migrant workers who play an undeniable role in their economies. Bilateral social security agreements between Zambia and Malawi, together with the one between Sweden and Philippines, are taken into consideration as best practices that Lesotho, Swaziland and South Africa may draw examples from when drawing up and concluding their own bilateral social security agreements. The Philippines’ unilateral initiatives are also discussed and hailed as the best practices that migrant-sending countries such as Lesotho and Swaziland may further draw examples from. The Philippines has developed strategies aimed at guaranteeing social protection for its migrant workers abroad and further makes sure that it enters into bilateral agreements with any country that receives services from its citizens. While the need to conclude multilateral and bilateral agreements on social security cannot be denied, there is also a need for migrant-sending countries to come up with unilateral initiatives to lessen the burden on migrant-receiving countries in this social security domain. Sectors such as the mining sector should also have mining-specific agreements that mining-specifically deal with issues related to migrant mine workers. Lack of statistics of migrant workers moving in and out of South Africa has also been labelled as one of the reasons halting access and portability of social security benefits; hence there is a need to develop a data-base aimed at keeping track of all migrant workers, retired and otherwise. Migrant workers who seek redress regarding access of their unclaimed or unpaid social security benefits also have to be provided with comprehensive protection from the courts of law. This therefore means that an adjudication system should be established to deal
with social security woes so that those seeking redress have adequate legal support.
Key words: labour, social security, social protection, migration, unilateral,
Table of Contents DEDICATION ... i ACKNOWLEDGEMENTS ... i ABSTRACT ... ii Table of Contents ... v LIST OF ABBREVIATIONS...xvii
CHAPTER ONE: INTRODUCTION ... 1
1.1 Overview ... 1
1.2 Problem statement ... 3
1.2.1 Temporary residents ... 5
1.3 Research question ... 5
1.3.1 Main research question ... 5
1.3.1.1 Subsidiary research questions ... 5
1.3.2. ILO standards on social security ... 6
1.3.3 ILO standards on social security of migrant workers ... 7
1.3.4 The framework of social security rights in the SADC ... 9
1.3.4.1 The Code on Social Security in the SADC ... 11
1.4 Access and portability of social security benefits of
migrant workers in South Africa, Lesotho and Swaziland ... 13
1.4.1 South Africa ... 13
1.4.2 Disparities between selected migrant-sending countries in the SADC ... 19
1.4.2.1 Lesotho ... 20
1.4.2.2 Swaziland... 22
1.4.3 Best practices and comparative multilateral and bilateral agreements ... 23
1.4.3.1 Bilateral Labour and Social Security Agreement concluded between The Kingdom of Sweden and The Republic of the Philippines ... 25
1.4.3.2 Social security agreement between Zambia and Malawi ... 25
1.4.3.3 Selected regional multilateral agreements ... 26
1.4.3.4 Other lessons and best practices ... 30
1.4.4 Challenges facing access and portability of social security benefits for migrant workers ... 31
1.4.4.1 The relationship between immigration and social security ... 32
1.4.4.2 Labour law and social security law ... 32
1.4.4.3 The principle of territoriality ... 35
1.4.4.4 Taxation ... 38
1.4.5 Administrative challenges affecting portability ... 39
1.4.5.2 Other administrative challenges ... 42
1.5 Assumptions and hypothesis ... 43
1.6 Aims and Objectives ... 44
1.7 Research Methodology ... 45
1.8 Chapters’ outline ... 45
CHAPTER TWO: A DISCUSSION OF BOTH INTERNATIONAL AND REGIONAL STANDARDS ON MIGRATION, LABOUR RIGHTS, SOCIAL SECURITY RIGHTS AND THE PORTABILITY SOCIAL SECURITY RIGHTS... 49
2.1 Introduction ... 49
2.2 International standards on social security and the portability of social security rights ... 52
2.2.1 ILO standards on social security rights ... 53
2.2.1.1 Convention on Minimum Standards in Social Security ... 53
2.2.2 ILO standards on social security rights of migrant workers ... 56
2.2.2.1 Equality of Treatment (Accident Compensation) Convention ... 56
2.2.2.2 The Equality of Treatment Convention ... 57
2.2.2.3 Maintenance of Social Security Rights Convention ... 60
2.2.2.3.1 Maintenance of Social Security Rights Recommendation 167 of 1983 ... 62
2.3 Other international instruments impacting social
security ... 66
2.3.1 The United Nations International Covenant on Economic, Social and Cultural Rights ... 66
2.3.2 International Convention on the Elimination of All Forms of Racial Discrimination ... 69
2.3.3 The Convention on the Rights of the Child ... 69
2.3.4 International Covenant on Civil and Political Rights ... 70
2.3.5 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families ... 70
2.4 The African Union (Regional social security standards) ... 73
2.4.1 The Constitutive Act of the African Union ... 73
2.4.2 The African Charter on Human and Peoples’ Rights ... 75
2.4.3 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa ... 78
2.4.4 Social Policy Framework for Africa ... 79
2.4.5 Ouagadougou Declaration and Plan of Action (2004) ... 81
2.4.6 AU Migration Policy Framework for Africa ... 82
2.5 The framework of social security rights in the SADC ... 84
2.5.1 The SADC Treaty ... 85
2.5.2 Charter of Fundamental Social Rights in SADC ... 87
2.5.4 Draft Policy Framework on Portability of Accrued Social Security
Benefits within the Region ... 93
2.5.5 SADC Protocol on Employment and Labour ... 96
2.6 Shortcomings of international standards in the developing world ... 97
2.6.1 Social security state and challenges ... 98
2.6.2 The International Monetary Fund ... 100
2.6.3 The universality of international labour standards ... 102
2.6.4 Ratification as a challenge ... 107
2.6.5 Social security and the informal economy ... 110
2.7 Challenges impacting on international and regional standards on social security adjudication ... 113
2.8 Conclusions ... 119
CHAPTER THREE: ACCESS TO SOCIAL SECURITY RIGHTS OF MIGRANT LABOURERS IN SOUTH AFRICA ... 122
3.1 Introduction ... 122
3.2 Migration movements in South Africa ... 123
3.2 Historical background of social security in South Africa ... 135
3.3 Social Security rights in the current South African Constitutional dispensation ... 138
3.3.1 How COIDA works ... 149
3.3.2 Benefits that can be claimed under COIDA ... 154
3.3.2.1 Temporary disablement ... 154
3.3.2.2 Permanent disablement ... 155
3.3.2.3 Dependants’ benefits ... 155
3.3.2.4 Medical aid ... 156
3.3.3 How ODMWA Compensates ... 159
3.4 The current state of social security legislations and the impact of the Constitutional Court on the development of social security in South Africa ... 161
3.4.1 The important role played by the Constitution in the development of social security rights ... 164
3.4.2 Courts as mechanisms of enforcement of social security and other related rights ... 168
3.4.2.1 Progressive realisation ... 171
3.4.2.2 Availability of resources ... 172
3.5 Issues surrounding dispute resolution and adjudication of Social Security in South Africa ... 181
3.5.1 Adjudication and dispute resolution provisions under relevant South African legislations ... 187
3.5.1.1 The Constitution ... 188
3.5.1.2 Adjudication system under COIDA ... 189
3.5.1.3 Adjudication under ODMWA ... 190
3.5.1.5 Adjudication under the Pension Fund ... 193
3.5.2 The challenges and shortcomings ... 194
3.6 Conclusion ... 196
CHAPTER FOUR: DISPARITIES BETWEEN SOCIAL SECURITY SCHEMES OF SELECTED MIGRANT-SENDING COUNTRIES ... 201
4.1 Introduction ... 201
4.2 Lesotho’s social security system overview ... 205
4.2.1 The Constitution of Lesotho ... 206
4.2.1.1 The Right to Equality ... 207
4.2.1.2 Freedom from discrimination ... 208
4.2.2 Specific social security legislations ... 209
4.2.2.1 The Labour Code Order ... 209
4.2.2.1.1 Severance pay ... 213
4.2.2.1.2 Compensation for employment injury ... 214
4.2.3 Lessons for Lesotho ... 220
4.2.4 Mechanisms of enforcement and adjudication of social security rights in Lesotho ... 222
4.2.4.1 Courts Jurisdiction over fundamental rights ... 223
4.2.4.2 The Labour Court and the Labour Appeal Court ... 225
4.2.5 The Proposed National Social Security Bill of Lesotho ... 226
4.2.6.1 Employment injuries insurance ... 231
4.2.6.2 Maternity insurance ... 231
4.2.7 The Financing of Social Security in Lesotho ... 232
4.3 Social Protection in the Kingdom of Swaziland ... 235
4.3.2 Social Assistance ... 239
4.3.2.1 Old-age grant ... 239
4.3.2.2 Health care ... 240
4.3.2.4 The Civil Servants Referral Scheme ... 242
4.3.3 Social Insurance ... 242
4.3.3.1 Swaziland National Provident Fund ... 243
4.3.3.2 Public service pension fund ... 244
4.3.4 Occupational Injury Scheme or Workers Compensation ... 246
4.3.4.1 Occupational health and safety ... 246
4.3.4.2 Employment injury compensation and Workers compensation ... 249
4.3.4.3 Mechanisms of enforcement and adjudication of social security rights in Swaziland ... 253
4.4 Access and Portability of Social Security Benefits ... 255
4.4.1 Swaziland ... 255
4.4.2 Lesotho ... 257
4.5 Portability of Social Security Benefits in Lesotho and Swaziland ... 258
4.5.1 The Employment Bureau of Africa ... 258
4.6.1 Bilateral Agreements Between the Republic of South Africa, Lesotho, and Swaziland ... 260
4.6.2 Management of Remittances in Lesotho and Swaziland ... 263
4.6.3 Unpaid Social Security Benefits ... 265
4.6.3.1 Compensation fund ... 265
4.6.3.2 Rand mutual assurance insurance ... 266
4.6.3.3 Mineworkers Provident fund benefits ... 267
4.6.3.4 Sentinel mining industry retirement fund ... 267
4.6.3.5 Living hands umbrella trust ... 268
4.6.3.6 Mines 1970’s Pension and Provident Funds benefits ... 269
4.6.3.7 Medical Bureau for Occupational Diseases (hereinafter-MBOD) and the Compensation Commissioner for Occupational Diseases (hereafter-CCOD) benefits ... 270
4.6.3.8 1970 Long Service Award Fund ... 271
4.7 Tracing of Those Who Are Eligible for Benefits ... 271
4.8 Conclusion ... 273
CHAPTER FIVE: BEST PRACTICES AND COMPARATIVE BILATERAL SOCIAL SECURITY AGREEMENTS ... 277
5.1 Introduction ... 277
5.2 Good practices social security agreements ... 278
5.2.2 Social security in the Caribbean Community and Common
Market (hereafter CARICIOM) ... 287
5.2.2.1 Treaty of Chaguaramas ... 288
5.2.2.2 Charter of Civil Society for the Caribbean Community ... 293
5.2.2.3 CARICOM agreement on social security ... 294
5.3 Social Security in the Southern Common Market (Hereafter MERCOSUR) ... 302
5.3.1 MERCOSUR Multilateral Agreement on Social Security ... 304
5.3.2 MERCOSUR Social and Labour Declaration (Hereafter Socio-Labour Declaration.) ... 306
5.3.3 The Agreement Relating to Residence Permits for Nationals of State Parties to MERCOSUR, Bolivia, and Chile ... 308
5.3.4 Joint Database for Migrant Workers ... 309
5.4 Bilateral Agreements: (Best Practices) ... 310
5.4.1 Social Security Agreement Between Zambia and Malawi ... 310
5.4.2 Agreement on Social Security Between the Kingdom of Sweden and the Republic of the Philippines ... 312
5.5 Best Practices Unilateral Initiatives ... 316
5.5.1 Philippines Unilateral Initiatives ... 316
5.6 Conclusion ... 318
CHAPTER 6: CONCLUSIONS AND RECOMMENDATIONS ... 321
6.2 Summary of Conclusions and Observations ... 322
6.3.1 International and Regional Law Application ... 323
6.3.2 Access of Social Security Rights for Migrant Labourers in South Africa ... 335
6.3.3 Disparities Between Social Security Schemes of Selected Migrant-sending Countries ... 339
6.3.4 Best Practices and Comparative Bilateral Agreements ... 344
6.3.5 Best Practices Bilateral Agreements ... 353
6.4 Recommendations... 356
6.4.1 Human Rights-based Approach to Social Security ... 357
6.4.2 Establishment of a Database of Migrant Workers ... 357
6.4.3 Migrant Workers Coverage in Their Countries of Origin ... 359
6.4.3.1 An establishment of unilateral voluntary social insurance initiatives for migrant workers abroad ... 360
6.4.4 Bilateral Social Security Agreements ... 361
6.4.4.1 Bilateral social security Agreement in the Mining Sector ... 363
6.4.4.2 A recommended specimen for access and portability of social security benefits for migrant workers in the SADC region ... 364
6.4.5 Social Security Multilateral Framework ... 366
6.4.5.1 Recommended framework for portability of social security benefits in the SADC ... 368
6.4.5.2.1 An establishment of independent adjudication institution ... 371
LIST OF ABBREVIATIONS
ACMS African Centre for Migration and Society
AHRJ African Human Rights Journal
AJFM African Journal Finance Management
ASEAN Southeast Asian Nations
ASSAL Annual Survey of South African Law
CARICOM Caribbean Community and Common Market
CARIFTA Caribbean Free Trade Association
CEDAW Convention on the Elimination of All Forms of Discrimination Against Women
CELLS Centre for European Law and Legal Studies
CERD International Convention on the Elimination of All Forms of Racial Discrimination
CJDS Canadian Journal of Development Studies CLLPJ Comparative Labour Law and Policy Journal CLLPJ Comparative Labour Law and Policy Journal COHSOD Council for Human and Social Development
COIDA Compensation of Occupational Injuries and Diseases Comp.Lab.L.&Pol’y J Comparative Labour Law and Policy Journal
COTED Council of Trade and Economic Development CRC Convention on the Rights of the Child
De Jure South African Attorneys’ Journal
EC European Commission
EEA European Economic Area
EEC European Economic Community
EJSS European Journal of Social security
EU European Union
ICESCR International Covenant on Economic, Social and Cultural Rights
IJCLLIR International Journal of Comparative Labour Law and Industrial Relations
ILO International Labour Organization
ILR International Labour Review
ISSR International Social Security Review
JAASSH Journal of Asian and African Social Science and Humanities
JEP Journal Für Entwicklungspolitik
JLSDUP Journal of Law, Society and Development and Unisa Press
JSDS Journal of Social and Development Sciences
KLI Kluwer Law International
LAWSA Law of South Africa
MERCOSUR Social Security in the Southern Common Market ODMWA Occupational Diseases in Mines and Works Act PELJ Potchefstroom Electronic Law Journal
PFA Pensions Fund Act
PSPF Public Service Pension Fund
PULP Pretoria University Law Press
RAFA Road Accident Fund
SA Merc LJ South African Mercantile Law Journal SADC Southern African Development Community
SADCLJ SADC Law Journal
SAGE International Social Work
SAMJ South African Medical Journal
SAPL South African Public Law
SAT Southern African Trust
SLR Stellenbosch Law Review
TEBA The Employment Bureau of Africa
TSAR Tydskrif vir die Suid Afrikaanse Reg
UIA Unemployment Insurance Act
CHAPTER ONE: INTRODUCTION 1.1 Overview
In Southern Africa, the reality is that many migrants travel to South Africa each year in search for proverbial greener pastures.1 The reason for this is mainly due
to the economic power that South Africa has compared to its Southern Africa counterparts.2 Migration is described as the movement of people across national
borders, while the reasons for migrating are termed migration drivers and are mainly conceptualised as reasons that generally result in people migrating from their home countries to other countries.3 Migration is explained more easily by
using the push-pull theory to illustrate that instability in the home country leads to migration while stability in the host attracts people to such a country. The primary reason for migration has been described as the search for better living standards for migrant workers themselves and their dependents.4
Migration as a phenomenon is unlikely to decrease in the coming years because of the push-pull factors, as mentioned above.5 What is very clear, however, is the fact that every country in the world is experiencing migration either as a home country, a host country, a transit country, or all of the above.6 According to recent
studies as per the ILO social protection report for 2017-2019, there is an estimate of about 244 million migrants worldwide with 150.3 million said to be migrant workers.7 However, it is important to note that in Southern Africa the most specific type of migration is South-South migration with most people migrating to South Africa because of its economic prowess.8 Research has shown just how common
1 Kapindu 2011 African Human Rights Journal 94. (hereafter-AHRJ) 2 Kapindu 2011 AHRJ 94.
3 Kaseke “Underlying drivers of migration in SADC” 4. 4 Olivier 2011 SADCLJ 123.
5 Kaseke “Underlying drivers of migration in SADC” 4.
6 Olivier and Govindjee “Labour rights and social protection of migrant workers” 4.
7 International Labour Organisation 2017 http://www.ilo.org. See also Anon 2015
http://www.ilo.org/gobal/topicslabour-migration.
8 Crush and Dobson “Migration governance and migrant rights in the Southern African
Development Community” 2. It has been indicated that in 2011, the South African census estimated that the number of people born in foreign countries actually residing in South Africa was around 2,199.871 which was approximated as forming at least 4% of the actual population.
circular migration is in Southern Africa, especially in terms of migration patterns to and from South Africa.9 This means that the migrant retains strong ties with his
country of origin and moves between his country of origin and the host country. 10 The magnitude of migration in this region is reflected by the vast number of remittances connected to migrant workers’ households.11 Although people migrate for various reasons, this thesis concentrates on migrant workers’ in particular, a category of people defined as those who work in a country other than their own or different from their place of residence.12
The problem in the SADC region specifically lies with immigration laws which have a negative impact on social security rights of migrant labourers.13 Since domestic immigration laws are mainly concerned with the regulation of people entering a particular state, these national immigration laws are also used to regulate and control access and entitlement to social security benefits in the receiving country.14 Consequently, this means that the immigration status of a worker is
sometimes linked with the entitlement to social security benefits hence irregular migrants are usually excluded from social assistance coverage.15
The main focus of the SADC immigration policies is the deportation and control of migrants and neither free movement nor integration of the region 16 One reason for this is the fact that SADC migrant-receiving countries have migrants ranging from both the formal to the informal sector.
These migrants are largely made up of domestic workers, mine workers, farm workers and construction workers who go back to their home countries at the end of their employment contracts and normally send remittances to their families who
9 Núñez 2009 http:// www.tips.org.za. 10 Núñez 2009 http:// www.tips.org.za.
11 Olivier 2011 SADCLJ 125. Research reveals that 85% of migrant sending countries in the
SADC region get cash remittances from migrant workers.
12 Taha, Messkoub & Siegmann 2013 http://www.iss.nl.
13 Mpedi and Smit Access to Social Security for Non-Citizens 52. 14 Mpedi and Smit (eds) Access to Social Security for Non-Citizens 52. 15 Mpedi and Smit (eds) Access to Social Security for Non-Citizens 52. 16 Mpedi and Smit (eds) Access to Social Security for Non-Citizens 52.
remain in those countries. Therefore, circular migration is prevalent in this part of Southern Africa.
1.2 Problem statement
According to the Southern Africa Trust, ZAR 5.7 million worth of retirement benefits were reported as unclaimed in 2013 in South Africa and clearly indicates that more has to be done to enhance the portability of social security benefits in this region.17 According to the report submitted by the South African Financial
Services Board, it is not clear how much money is owed to former migrant workers; however, the International Institute of Social Law and Policy states that a number of problems experienced by former migrant workers and their beneficiaries have contributed to this enormous sum of unclaimed funds.18 It is
therefore important to note that there is a relationship between migration and social security.
The International Labour Organisation19 describes social security as the protection
provided by society to individuals and households to guarantee access to health care and income security, specifically for unemployment, sickness, invalidity, cases of old-age, work injury, maternity or loss of a breadwinner.20 Social protection21 of
these migrant workers is composed of four components which will now follow.22 The first component is the accessibility of social security in both migrant-sending and migrant-receiving countries and how this affects the vulnerable.23 The second component is the need to balance the needs of employers and workers by recruitment processes in countries of origin together with labour market conditions
17 Olivier et al state as thus: “in a 2013 Southern Africa Trust (SAT) report, large numbers of
beneficiaries have not claimed their benefits (many of whom are migrant workers or their dependents), leaving an amount of R 5,7 billion in unclaimed retirement benefits.” See Deacon, Olivier and Beremauro 2015 http://www.miworc.org.za.
18 Jansson Mail and Guadian Page Unknown. 19 International Labour Organisation (hereafter-ILO)
20 International Labour Organisation Date Unknown http://www.ilo.org.
21 Taha, Messkoub & Siegmann state that “Social protection and social security are often used
interchangeably, but social protection can include private measures such as employer-funded schemes and support through social networks.”
22 Taha, Messkoub & Siegmann 2013 http://www.iss.nl. 23 Taha, Messkoub & Siegmann 2013 http://www.iss.nl.
for migrants. The third component is related to access to informal networks which can be used to act as informal social safety nets to support migrants and their dependants while, lastly, the fourth component deals with the portability of social security benefits between the receiving and sending countries. This last component is particularly vital to the purposes of this thesis because the study intents to establish how access and portability of social security benefits can be advanced.
The portability of social security benefits is defined as the migrant worker’s ability to maintain, preserve and transfer benefits from a social security programme in his or her host state to a home state.24 The issue of portability of social security benefits can only be addressed and solved through mutual agreements between both the sending and the receiving state or the receiving country with multiple sending countries.25 These agreements are referred to as bilateral and multilateral agreements. While both bilateral and multilateral social agreements can be used as a means of providing minimum standards of social security rights for migrant workers, it is important to note that the latter agreements are mostly used for economic integration and free movement of labour in the regional context.26
Multilateral social security agreements are further used for progressive harmonisation of social protection and labour policies which eventually lead to equal treatment of migrant workers and citizens.27
To a large extent, a migrant worker’s status is a determinant of how he or she will be treated in a receiving country’s social security system since social security entitlements are normally related to the length of employment periods or type of residency or size of contributions.28 This research will focus specifically on
documented migrant workers namely temporary residents.
24 Taha, Messkoub & Siegmann 2013 http://www.iss.nl. 25 Grenfell Date Unknown http://www.moscow.iom.int.
26 Van Ginneken 2013 European Journal of social security 214. (hereafter-EJSS) 27 Van Ginneken 2013 EJSS 214.
1.2.1 Temporary residents
This research is particularly interested in the plight of circular migrant workers who have to return to their home countries at the end of their employment contracts. While temporary residents are eligible for social insurance coverage in South Africa, they are not covered by the public sector health care in an attempt to reduce strain on South African resources.29 In the event that an injury or
disease occurs within the course of their employment, temporary residents can access compensation for occupational diseases and injuries; however, the only means of social security available to them would be via contributory private health care schemes.30 Social assistance, on the other hand, is restricted to citizens and
permanent residents while temporary residents are allowed to access social insurance coverage.31The question, however, remains as to what really happens
after temporary residents return to their countries of origin. This research, therefore, tackles the issue of portability of social security benefits of temporary residents or migrant workers upon their return home.
1.3 Research question
1.3.1 Main research question
How can access to and portability of social security benefits of circular migrant workers be enhanced in selected SADC member states?
1.3.1.1 Subsidiary research questions
To what extent could international labour law and social security law instruments enhance access to and the portability of social security benefits for migrant workers?
29 Mpedi and Smit (eds) Access to Social Security for Non-Citizens 19. South Africa is a receiving
country that will be discussed for purposes of this research.
30 Mpedi and Smit (eds) Access to Social Security for Non-Citizens 19-20. Both social assistance
and social insurance will be explained in detail in section 1.5.1 of this research.
To what extent could social security schemes and regulations in selected SADC member states aid the portability of social security benefits of migrant workers? To what extent could social security agreements enhance access to and the portability of social security benefits for migrant workers in selected SADC member states?
Could the adjudication of social security disputes enhance the portability of social security of migrant workers in selected SADC member states?
1.3.2. ILO standards on social security
The Convention on Minimum Standards in Social Security 102 of 1952 is considered a leader in social security conventions as it sets out global minimum standards of all nine branches of social security.32 The nine branches can be
named as follows: medical care, sickness benefits, unemployment benefits, old-age benefits, employment injury benefits, family benefits, maternity benefits, invalidity benefits and survivors’ benefits.33 The Convention’s importance is
confirmed by the fact that it has been used by many states as a referral point to draft their own social security legislation.34 Upon ratification, this Convention
requires states to provide for at least three of the nine branches and extend coverage by providing other social security branches in its social security system at a later stage.35
The Social Protection Floors Recommendation was adopted in 2012 by the ILO, a move hailed as a milestone for social security since it reaffirms social security as a
32 Hirose, Nikac & Tamagno 2011 http://www.ilo.org. South Africa, Lesotho and Swaziland have
not ratified this Convention. However, this Convention is important as it is referred to as a leader of all social security conventions. Hirose, Nikac and Tamagno state that this Convention has been cited as reference in the gradual development of comprehensive social security systems at domestic level worldwide.
33 Hirose, Nikac & Tamagno 2011 http://www.ilo.org.
34 Nyenti & Mpedi 2015 http://www.sapen.org. See also Hirose, Nikac & Tamagno 2011
http://www.ilo.org.
35 Meknassi 2006 Comparative Labour Law and Policy Journal 209-210. (hereafter
human right and renews national commitments to extend coverage worldwide.36
The Recommendation provides guidance to member states as to how to establish and maintain social protection floors as a fundamental aspect of their domestic social security systems.37 This instrument advocates for the enjoyment of a
minimum level of social security and the extension of social security strategies to ensure support for disadvantaged groups and people with special needs.38
1.3.3 ILO standards on social security of migrant workers
From ILO’s early years, the International Labour Conference has inserted clauses on equality of treatment between national and non-national workers into its social security Conventions. In addition to the general social security Convention which set minimum standards, the International Labour Conference has adopted several instruments that specifically lay down provisions for the protection of migrant workers’ social security rights, namely the Equality of Treatment (Accident Compensation) Convention, 1925 (No. 19), the Equality of Treatment (Social Security) Convention, 1962 (No. 118) and the Maintenance of Social Security Rights Convention, 1982 (No. 157), together with its supplementary Maintenance of Social Security Rights Recommendation, 1983 (No. 167).
The Equality of Treatment (Accident Compensation) Convention 19 of 1925 was adopted with the intention of compensating those who encounter personal injuries due to industrial accidents.39 According to this Convention, each ratifying state
undertakes to grant nationals of any contracting state and their dependants the same treatment in respect of accident compensation as it grants its own nationals.40 Furthermore, it provides that equal of treatment be guaranteed to
foreign workers and their dependants without any condition of residence.41 It is,
therefore, safe to state that it covers migrant workers as well. According to article
36 International Social Security Association Date Unknown http:www.issa.nl. See also Social
Protection Floors Recommendation 202 of 2012.
37 Article 1(a). 38 Article 16. 39 Article 1. 40 Article 1(1) 41 Article 2.
1 (2), if a member state has to make payments abroad, then measures adopted shall be regulated if necessary by special arrangements between member states concerned. The Convention does not oblige any member state to pay benefits abroad. However, if measures to pay benefits to nationals living abroad are adopted, then the same has to be done for foreign workers.42
The Equality of Treatment Convention (hereafter - Convention 118)43 was passed
in 1962, stating clearly in its preamble that one of its missions is to tackle the issue of equality between nationals and non-nationals in the social security sphere, and sets out nine branches of social security as well.44 It further states that
member states are obliged by the Convention to cover migrants or non-nationals with any or more of the said branches already legislated by an effective operating law for nationals of the said member states.45
However, it is important to note that ratifying states may choose which of these branches to enforce and which to exclude.46 By ratifying the Convention, the
receiving state undertakes to protect migrant labourers from a state with reciprocal ratification of the Convention.47 According to article 5 of this
Convention, benefits to be provided abroad include invalidity benefits, old-age benefits, survivors' benefits and death grants and employment injury pensions.48 However, these benefits can only be exported abroad to nationals of fellow ratifying states.49
The other important instrument for purposes of this research is the Maintenance of Social Security Rights Convention 157 of 1982 which points out that contracting states may accept the Convention’s obligations in respect of any one or more of the nine branches of social security for which it has in effective operation
42 Kulke Date Uknown http://www.social-protection.org.
43 Equality of Treatment (Social Security) Convention 118 of 1962. The jurisdictions relevant to
this research which are Lesotho, Swaziland and South Africa have not ratified this Convention.
44 Article 2. See chapter 1 section 1.3.2. See also the Preamble of Convention -118. 45 Article 2(1).
46 Grenfell date unknown http://moscow.iom.int. 47 Grenfell date unknown http://moscow.iom.int. 48 Article 5(1).
legislation covering its own nationals within its own territory.50 This means that
member states accept the Convention’s obligations for all branches for which it has a scheme in place.51 In terms of article 2(3) thereof, the Convention applies to
all general and special social security schemes, whether contributory and non-contributory including schemes consisting of employer-imposed obligations as per legislations in respect of any branch of social security.52 Ratification of the
Convention means that member states endeavour to enter into bilateral and multilateral agreements which will deal with issues like maintenance of acquired rights and portability of social security benefits.53 Analysing these international
labour law and social security law instruments will determine if such do advance access to and portability of social security benefits hence directly addressing the first subsidiary research question.
1.3.4 The framework of social security rights in the SADC
The issue of lack of multilateral agreements that regulate the portability of social security in the SADC plays a very essential role in migrant labourers’ lives. At the present moment, there is a lack of coordination and harmonisation of social security schemes throughout the SADC.54 While it is important to note that the
SADC has some core instruments which seem to envisage such coordination and harmonisation to a certain inadequate extent, the lack of regional enforcement and ratification is one of the reasons why portability of social security rights is still a problem. An example is the Charter of Fundamental Social Rights in SADC
50 Article 2. See also Hirose, Nikac & Tamagno 2011 http://www.ilo.org. It is unfortunate that
Lesotho, Swaziland and South Africa have not ratified this Convention as this would have been a starting point towards the establishment of social security agreements between the three countries.
51 De L “Social protection for migrant workers: ILO’s approach and ASEAN perspective”. 52 Article 2(1).
53 De L “Social protection for migrant workers: ILO’s approach and ASEAN perspective”.
According to article 5 of the Convention, legislation regarding people to be covered by the Convention must be determined by agreement between member states concerned to avoid conflict and other unnecessary consequences that might occur. This article therefore provides guidelines for the creation of bilateral agreements on social security benefits which may therefore lead to coordination of social security schemes amongst member states.53
Multilateral and bilateral agreements are further provided for expressly in article 4 which makes distinctions between provisions of the convention which need immediate application and those that need multilateral and bilateral agreements to come into operation.
(hereinafter, the Social Charter) adopted by the SADC in 2003. Most important is the fact that the Social Charter evoked the objectives of the SADC Treaty55 and
clearly advocates for the alleviation of poverty, development and economic growth, enhancement of quality and standard of living of people in the region. It further supports the socially disadvantaged by encouraging and advocating for the integration of states in the region.56 Article 2(e) of this Charter states that the
promotion of the establishment and harmonisation of social security schemes is one of its objectives.57 Article 10 obliges member states to create an enabling
environment so that every worker in the region has a right to adequate social protection.58 The fact that it advocates for the establishment and harmonisation of social security schemes while urging members to create an enabling environment for every worker to receive social protection shows that there is an intention on the part of SADC to create an environment that would make the portability of social security benefits easier.59 It is imperative to note that the Social Charter
does not draw a distinction between citizens and non-citizens and therefore can also be construed as including migrant labourers. However, the realisation that there is a need for an effective instrument for the coordination, convergence and
55 On the 17 August 1992, the heads of state of countries throughout Southern Africa signed the
Declaration and Treaty of the Southern African Development Community, officially creating SADC.
56 Mpedi and Smit Access to Social Security for Non-Citizens 35. See Dupper 2014 http://
www.transformeurope.eu. See also the articles 2 to 5 of the SADC Treaty which was signed in August 17, 1992 in Windhoek, Namibia. See also article 6 of the treaty.
57 See also Dupper 2014 http:// www.transformeurope.eu. Dupper does however show the
inadequacy of the provision by stating that because of the existing diversity of social protection schemes in the region the assumption is that the Charter envisages weak harmonisation of minimum standards in the region
58 Dupper 2014 http:// www.transformeurope.eu. See also Mpedi and Smit Access to Social
Security for Non-Citizens 38.
59 Likewise, article 10(2) further states that persons who have been unable to either enter or
re-enter the labour market and have no means of subsistence shall be entitled to receive sufficient resources and social assistance. It is important to note that the word “persons” in the said article 10 shows no distinction between citizens and non-citizens and can therefore be construed as encompassing migrant workers as well. Even more explicit are the provisions of article 8(a) which affords protection to every employee in the region. It states that every worker in the region shall enjoy resources affording him/her a decent standard of living, including equity in post-employment security schemes at the time of retirement. Article 8(b) further stipulates that in situations that a worker has reached retirement age but does not have other means of subsistence and is not entitled to pension, such a person will be entitled to adequate social assistance to provide for his basic needs including health care. See Mpedi and Smit Access to Social Security for Non-Citizens 38.
harmonisation of social security systems in the region has led to the establishment of the Code on Social Security in the SADC.
1.3.4.1 The Code on Social Security in the SADC
The purpose of the Code on Social Security in the SADC60 was summarised by
Dupper61 as providing “SADC and Member States with an effective instrument for the coordination, convergence and harmonisation of social security systems in the region”62 Perhaps even more important in the Code is article 4.1, which explicitly
indicates that everyone in the SADC has a right to social security.63 The Code further explicitly deals with migrant labourers in article 17, which also lists a few core principles and encourages its member states to protect lawfully employed migrants by ensuring that such principles are promoted.64 It advocates for the
protection of all lawfully employed migrant labourers and states that protection through core principles should be advanced by means of national laws and both bi and multilateral agreements.65 Most importantly (in light of this study) member
states are urged to ensure the exportability of benefits and payment thereof, in the host country.66 The Code advances this argument by primarily advocating for
equal treatment of migrants and citizens in the social security schemes of host countries and further states that there should be an accumulation and maintenance of acquired rights and benefits, and collection of insurance periods in
60 The Code on Social Security in the SADC (Hereafter-Code) was approved in 2007 by the
ministers and social development partners and recommended to the Integrated Committee of Ministers for adoption. See Mpedi and Smit Access to Social Security for Non-Citizens and the portability of social benefits 39.
61 Dupper 2014 http:// www.transformeurope.eu. 62 Dupper 2014 http:// www.transformeurope.eu. 63 Article 4.2.
64 Article 17.3. The Charter even extends coverage to illegal and undocumented migrants by
stating that such should be afforded basic minimum social security coverage in accordance with the laws of the host country. See also Mpedi and Smit Access to Social Security for Non-Citizens 39.
65 Article 17.2. However, there is a limited and insufficient range of bilateral agreements on
portability and exportability of social security benefits, including pensions. See also Deacon, Olivier and Beremauro 2015 http://www.miworc.org.za.
66 Article 17(b). Article 17(a) in essence advocates for migrant labourers’ participation in social
different SADC member states.67 This shows that it seeks social security protection
for migrant labourers not only while at work in the host country but also upon their return to their country of origin. However, it is important to note that this Code is of non-binding and only provides guidelines necessary for the implementation of social security in the region.68 SADC member states’ regulations on social security and the portability thereof are essentially not coordinated. This together with other issues previously mentioned has led to the adoption of the SADC Protocol on Employment and Labour which is described as foreseeing coordination in the region.
1.3.4.2 SADC Protocol on Employment and Labour
Another significant SADC instrument is the SADC Protocol on Employment and Labour which came into being in 2014 and was described as foreseeing the adoption of the means to facilitate the coordination and portability of social security benefits.69 Article 19(f) of this protocol urges member states to implement
measures to facilitate coordination and portability of social security benefits through the adoption of bilateral and multilateral agreements and furthermore advocates for equality of treatment of citizens and non-citizens and promotes aggregation of insurance periods and maintenance of acquired rights and benefits. However, the implementation of this protocol has largely been hindered by a lack of ratification.70 Thus, there is still a lack of mechanisms and social security agreements that aid and advance the portability of social security benefits for retired migrant workers.
67 Article 17(c)&(d). Perhaps more essential for purposes of this thesis is article 17.2 (d) which
advocates blatantly for facilitation of exportability of benefits. According to this provision, member states should ensure the facilitation of exportability of benefits, including the payment of benefits in the host country.
68 Nyenti and Mpedi 2015 Potchefstroom Electronic Law Journal 249-250. (hereafter PELJ) The
other problem with article 17 is the fact that host countries seem to be given the liberty to deal with irregular migrants in any way they prefer. The fact that the provision says in accordance with the laws of the host country means that most irregular migrant labourers are not afforded even the slightest protection because they are not catered for in domestic laws of host countries. Article 17. See also Deacon, Olivier and Beremauro 2015 http://www.miworc.org.za. Member states are further encouraged to ensure coverage of self-employed migrant labourers on the same scale as self-employed migrants. See
69 Deacon, Olivier and Beremauro 2015 http://www.miworc.org.za.
SADC regional instruments do not portray strong enough measures for the proper establishment and development of social security coordination with the exception of the code.71 One of their major flaws is that they do not have one compulsory
rule prohibiting nationality discrimination.72 In fact, even the SADC Treaty (as
adopted in 1992) does not seem to be specific enough about issues pertaining to discrimination on the basis of nationality.73 Article 6(2) of the SADC Treaty asserts
that member states shall not discriminate against any person on the grounds of gender, religion, political views, race, ethnic origin, culture or disability. There is also absolute silence regarding discrimination on the grounds of citizenship in the SADC Treaty.
The SADC region has to adopt precise and solid measures to deal with issues relating to social security for migrant workers. Specific country-to-country arrangements and agreements based on principles contained in the Code on Social Security in the SADC may be considered. National laws and practices also have to be examined in order to realize protection for migrant workers. The next part of the research will look closely at national laws and practices pertaining to social security of migrant workers.74 These discussions ultimately lead to the second
subsidiary research question which is whether SADC regional labour law and social security law instruments do advance access and portability of social security benefits of circular migrant workers.
1.4 Access and portability of social security benefits of migrant workers in South Africa, Lesotho and Swaziland
1.4.1 South Africa
Social protection is easily one of the most essential rights and yet it has been stated that 80 % of the world’s working population does not have access to social
71 Olivier “Social protection for migrant workers from Malawi” 6. 72 Olivier “Social protection for migrant workers from Malawi” 1-6. 73 Olivier “Social protection for migrant workers from Malawi” 1-6.
74 South Africa will be the starting point of the discussion as a migrant receiving country, then
security.75 South Africa has work-related social protection concentrated mainly in
the formal economy sector.76 Other than that, the focus is mainly on citizenship
and residency as the main requirements for access.77 It is for these reasons that access to social security of migrant labourers is rather difficult. Migration policies in this region are mainly concerned with the control and expulsion of illegal migrants in the region.78 One of the pieces of legislation that largely controls
migration in South Africa is the Immigration Act79 whose preamble states that it
was passed to establish a system that controls migration by ensuring boarder monitoring with an aim of making South African borders solid. The preamble further states that the aim is to detect, reduce and deter illegal migrants from entering the Republic of South Africa.
Nonetheless, the Immigration Act has done little to deter migration influx in South Africa; hence a large number of irregular migrants pouring in.80 One major problem with the Immigration Act is the fact that it makes it difficult for low-skilled, documented migrant workers to attain employment in South Africa. In terms of section 2(1)(j), one of its objectives is to regulate the influx of foreigners by ensuring that businesses in this country employ migrants who are exceptionally skilled or qualified. The provision further states that the Act aims to encourage employers to train citizens and reduce their dependency on foreigners.81
75 Biney “Understanding the problem: A South African policy reflection on the social protection of
unauthorised migrant workers”. See Dupper 2014 http:// www.transformeurope.eu.
76 Biney “Understanding the problem: A South African policy reflection on the social protection of
unauthorised migrant workers”. See Dupper 2014 http:// www.transformeurope.eu.
77 Biney “Understanding the problem: A South African policy reflection on the social protection of
unauthorised migrant workers”.
78 Biney “Understanding the problem: A South African policy reflection on the social protection of
unauthorised migrant workers”.
79 Act 13 of 2002.
80 Biney states that: “South African borders, particularly the border shared with Zimbabwe, have
become undeniably porous for undocumented workers as people commonly cross without going through immigration posts. The failure of the South African government to use its ‘immigration-regulatory powers’ to regulate or manage its borders effectively could be a silent offer to irregular migrants to enter.” Biney “Understanding the problem: A South African policy reflection on the social protection of unauthorised migrant workers”.
81 Article 2(1)(j). The fact that the provision encourages businesses to employ exceptionally
skilled migrants is a good thing, however, this does not mean that low skilled migrant workers do not flood into South Africa year in and year out. These low skilled migrant workers who normally do not know their rights end up being employed illegal and normally get exploited.
The other provision that makes it essentially challenging for low-skilled migrants to find employment is section 38, which states that employers who knowingly hire unauthorised migrants will be prosecuted.82 This section seems to turn a blind eye to the fact that the mining, agricultural, hospitality and construction sectors of the present-day South African economy rely heavily on low-skill migrant labour for survival.83 These low-skilled migrant labourers are largely irregular or
undocumented migrants and are, therefore, found in sectors that are not adequately covered by legislations.84 Migrants are often associated with jobs that citizens of host countries would not accept; hence finding themselves in harmful working and living conditions. Their fear of being detected, prosecuted and even deported means that they keep silent about their hazardous conditions.85
Consequently, a great number of migrants are clustered in sectors of the economy either completely uncovered by social security or lack proper social security law enforcement.86
It is significant to further note that section 27 of the Constitution of the Republic of South Africa states that anyone has the right to access social security.87
According to section 27(2), the state must take reasonable legislative and other measures within its available resources to achieve progressive realisation of these social security rights. In South Africa, there is a clear distinction between social assistance and social insurance.88 Social assistance is a form of social security providing assistance in cash or in-kind to persons who lack the means to support themselves and their dependents. Beneficiaries of this form of social security are
82 Biney “Understanding the problem: A South African policy reflection on the social protection of
unauthorised migrant workers”.
83 Biney “Understanding the problem: A South African policy reflection on the social protection of
unauthorised migrant workers”.
84 Biney in advocacy of this states that: “In South Africa, like elsewhere in the world, they are
often found in sectors of the economy that are not adequately covered by protective legislations.” See also Deacon, Olivier and Beremauro 2015 http://www.miworc.org.za.
85 Biney “Understanding the problem: A South African policy reflection on the social protection of
unauthorised migrant workers”.
86 Biney “Understanding the problem: A South African policy reflection on the social protection of
unauthorised migrant workers”.
87 Constitution of the Republic of South Africa, 1996 (hereafter the Constitution).
88 Millard 2008 AHRLJ 40. See also Biney “Understanding the problem: A South African policy
normally those who are not covered by any form of social security. 89 Social
assistance is means-tested and is financed from government revenues with an intention of alleviating poverty through minimum income support. Social assistance covers grants available in South Africa, which comprise of old-age grants, disability grants, foster care grants, care-dependency grants and a child support grants.90 In South Africa, this system is made available to certain groups
of migrants or non-citizens, mainly refugees and permanent residents.91
On the other hand, social insurance is defined as a form of social security intended to protect income earners and their dependants against reduction or loss of income as a result being exposed to any sort of risk that weakens an individual’s capacity earn an income.92 Social insurance is contributory in nature and these
contributions are paid by employers, employees, self-employed individuals or other contributors depending on the type and nature of scheme one is part of.93 It
is therefore, safe to state that social insurance intents to achieve a reasonable level of income maintenance.94 Moreover, social insurance of South Africa is made
up of retirement schemes, health insurance, workmen’s compensation and unemployment insurance.95
An example of this is the Unemployment Insurance Act (UIA)96 which covers
employees and their dependants against temporary unemployment arising from the termination of service, illness, and the birth or adoption of a child.97 However, the Road Accident Fund is also social insurance even though it is not insurance-based.98 It is crucial to note that temporary migrant workers or short-term migrant
89 See article 1.2 of the Code on Social Security in the SADC. 90 Millard 2008 AHRJ 40.
91 Deacon, Olivier and Beremauro 2015 http://www.miworc.org.za. 92 Article 1.3 of the Code.
93 Article 1.3 of the Code. 94 Article 1.3 of the Code.
95 Millard 2008 African Human Rights Law Journal 40. Note that the above-mentioned schemes
are regulated by the following statutes Pension Funds Act 24 of 1956, Medical Scheme Act
131 of 1998, Unemployment Insurance Act 75 of 1966 (hereafter-UIA).
96 Act 63 of 2001.
97 Deacon, Olivier and Beremauro 2015 http://www.miworc.org.za. 98 Millard 2008 AHRJ 40.
employees are excluded from social insurance protection.99 This is mostly because
such migrants have to go back home upon the completion of their employment contracts.100 It is pivotal to point out that the UIA has no history of payments outside South African borders.101
Domestic workers, on the other hand, fall under one of the most under-regulated employment sectors in South Africa.102 For example, they are not covered by the
Compensation for Occupational Injuries and Diseases Act (hereinafter COIDA) and are therefore not able to get redress for injuries they incur while working.103 Domestic work is traditionally one of the most noteworthy areas of employment for migrant labourers from around the SADC region.104 Migrant domestic workers, who are mostly black women from other SADC countries, tend to find employment in poor conditions coupled with low earnings.105 Domestic workers are also
inaccessible to authorities because their occupation is within a private sphere outside the public realm.106
In South Africa, domestic workers receive their social security cover from the UIA upon contributing 1% of their monthly income towards the same fund.107
However, the UIA is not available to foreign nationals who are required to go back home upon the termination of their employment.108 Non-coverage of migrant domestic workers by both COIDA and UIA shows how undervalued this sector of employment is in this region.
Labour law related issues, on the other hand, stem from regulations that deal with injuries and illnesses that arise out of employment. In the mining sector, different
99 Deacon, Olivier and Beremauro 2015 http://www.miworc.org.za. 100 Deacon, Olivier and Beremauro 2015 http://www.miworc.org.za. 101 Deacon, Olivier and Beremauro 2015 http://www.miworc.org.za. 102 Deacon, Olivier and Beremauro 2015 http://www.miworc.org.za. 103 Deacon, Olivier and Beremauro 2015 http://www.miworc.org.za. 104 Deacon, Olivier and Beremauro 2015 http://www.miworc.org.za.
105 According to reports, in 2001 42% of black women from other SADC member states employed
in Johannesburg worked in households. Deacon, Olivier and Beremauro 2015 http://www.miworc.org.za.
106 Deacon, Olivier and Beremauro 2015 http://www.miworc.org.za.
107 It is noteworthy to heed the fact that such domestic workers ought to work for more than 24
hours in order to be eligible. Deacon, Olivier and Beremauro 2015 http://www.miworc.org.za.
laws govern occupational injuries and diseases and these are governed by different departments. This fragmentation also makes it difficult for migrants to access their rights.109 Of note are the Occupational Diseases in Mines and Works Act (hereinafter the ODMWA)110 and COIDA, which provide a system of no-fault
compensation for employees who are injured in accidents that arise out of and in the course of their employment, or who contract occupational diseases.111
However, these two Acts are regulated by different government departments. COIDA is essentially governed by the Compensation Fund of South Africa, which falls under the Department of Labour and is responsible for benefits which encompass medical benefits and temporary and permanent disability compensation payments, while ODMWA falls under the Medical Bureau for Occupational Diseases which is essentially part of the Department of Health.112 It
has to be noted that there are a lot of differences between these two Acts, with COIDA providing benefits which are generally superior to those of ODMWA.113
The challenge faced by migrant labourers and their dependents is the fact that social security mechanisms differ according to categories of affected workers affected.114 This together with lack of synergy, coordination and collaboration at
the policy, institutional and operational levels in South Africa delays social security provision for migrant labourers and their dependents.115 Another hurdle that
migrant labourers face is related to medical assessments that lead to compensation. For mining-related lung diseases, assessments are undertaken by the Medical Bureau for Occupational Diseases situated in Johannesburg. Ex-miners, especially migrant Ex-miners, find it very difficult to travel to South Africa for
109 Deacon, Olivier and Beremauro 2015 http://www.miworc.org.za. 110 Act 78 of 1973.
111 Act 130 of 1993.
112 Deacon, Olivier and Beremauro 2015 http://www.miworc.org.za.
113 Olivier et al “Occupational injuries and deaths, as well as non-mine-related occupational
diseases and mine-related diseases not covered by ODMWA (such as noise induced hearing loss), are essentially covered by COIDA… COIDA provides for different categories of benefits, including medical benefits and temporary and permanent disability compensation payments, which may be in the form of a lump sum or pension payments depending on the severity of the disability.”
114 Deacon, Olivier and Beremauro 2015 http://www.miworc.org.za. 115 Deacon, Olivier and Beremauro 2015 http://www.miworc.org.za.
